OKC Pharmacist Defends Self, Gets Called Racist

[cannon_fodder]

There is probably video surveillance that will solve these questions:

1) Was he shot in the back?

2) Was he incapacitated / did he no longer pose a threat?

3) How much 'thought' was put into the fatal shooting?

If he was indeed shot in the back it could be a problem.  If the kid was incapacitated it is probably a problem.  And the longer the guy had to think about it or more evident it was that he considered it, the more likely it is a problem.

BUT... I don't think it warrants a first degree murder charge unless the story he told was way off.  If he shot the guy, chased the others, came back in, got another guy, and as the guy lay on the ground unarmed unloaded into him . . . then it would probably warrant the charge (I'd probably convict of something lesser though, given the situation). 

A. A person commits murder in the first degree when that person unlawfully and with malice aforethought causes the death of another human being. Malice is that deliberate intention unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof.

B. A person also commits the crime of murder in the first degree, regardless of malice, when that person or any other person takes the life of a human being during, or if the death of a human being results from, the commission or attempted commission of murder of another person, shooting or discharge of a firearm or crossbow with intent to kill, intentional discharge of a firearm or other deadly weapon into any dwelling or building as provided in Section 1289.17A of this title, forcible rape, robbery with a dangerous weapon, kidnapping, escape from lawful custody, eluding an officer, first degree burglary, first degree arson, unlawful distributing or dispensing of controlled dangerous substances, or trafficking in illegal drugs.

C. A person commits murder in the first degree when the death of a child results from the willful or malicious injuring, torturing, maiming or using of unreasonable force by said person or who shall willfully cause, procure or permit any of said acts to be done upon the child pursuant to Section 7115 of Title 10 of the Oklahoma Statutes. It is sufficient for the crime of murder in the first degree that the person either willfully tortured or used unreasonable force upon the child or maliciously injured or maimed the child.

D. A person commits murder in the first degree when that person unlawfully and with malice aforethought solicits another person or persons to cause the death of a human being in furtherance of unlawfully manufacturing, distributing or dispensing controlled dangerous substances, as defined in the Uniform Controlled Dangerous Substances Act, unlawfully possessing with intent to distribute or dispense controlled dangerous substances, or trafficking in illegal drugs.

E. A person commits murder in the first degree when that person intentionally causes the death of a law enforcement officer or correctional officer while the officer is in the performance of official duties.

21 OS 707.1

I just don't think it fits very well.  Perhaps they are saying the robber was a child and he used unreasonable force? 

If he shot the guy when he was down and out, it is a crime.  But certainly it was in the heat of passion and not a thought out or executed plan. Other kinds of murder:

Homicide is murder in the second degree in the following cases:

1. When perpetrated by an act imminently dangerous to another person and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual; or

2. When perpetrated by a person engaged in the commission of any felony other than the unlawful acts set out in Section 1, subsection B, of this act.

12 OS 701.8

Homicide is manslaughter in the first degree in the following cases:

1. When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor.

2. When perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitute excusable or justifiable homicide.

3. When perpetrated unnecessarily either while resisting an attempt by the person killed to commit a crime, or after such attempt shall have failed.

12 OS 711

Homicide is also justifiable when committed by any person in either of the following cases:

1. When resisting any attempt to murder such person, or to commit any felony upon him, or upon or in any dwelling house in which such person is; or,

2. When committed in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress, or servant, when there is a reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished; or,

3. When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed; or in lawfully suppressing any riot; or in lawfully keeping and preserving the peace.

21 OS 733

All other 'murder' is Second Degree manslaughter.  There is also negligent homicide, but it probably doesn't apply.

Here is my guess:  first degree murder by the death of a child.

No person may be convicted of murder in the first degree unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, the death of a child under the age of eighteen;

Second, the death resulted from the willful or malicious injuring/ torturing/maiming/(using of unreasonable force);

[Third, by the defendant.]

OUJI CR 4-64A



It might be more helpful for some to look over the jury instructions to figure out what those damn statutes say:

http://www.okcca.net/online/oujis/oujisrvr.jsp?o=3

[swake]

The kid was alive, unarmed and unconscious on the floor from being shot in the head, the pharmacist chased the second robber out the door, gave up, came back got a second gun and shot the kid five times while he lay on the floor killing him. And it's on video.

What does that sound like to you?


http://www.newson6.com/Global/story.asp?S=10429037#WNPoll83889

News9.com

OKLAHOMA CITY -- An Oklahoma City pharmacist is facing a first-degree murder charge after shooting back during an attempted robbery.

Jerome Ersland, 57, was charged Wednesday in Oklahoma County District Court. He is accused of killing Antwun Parker on May 19 when Parker and a friend tried to rob Reliable Pharmacy in south Oklahoma City.

Ersland said he shot Parker to save his own life and the lives of his co-workers. He said Parker and another man came into the pharmacy on wearing masks and demanding money and drugs.

Oklahoma County District Attorney David Prater said that Ersland was justified in shooting Antwun Parker once in the head on May 19. But Prater says Ersland went too far when he shot Parker five more times in the abdomen while Parker lay unconscious on the floor.

Had Ersland's first shot been fatal, he would not face charges under Oklahoma's Stand Your Ground Law, Prater said.

However, Prater said security video shows that Ersland chased the second man outside before returning then walked past Parker to get a second gun before going back to fire the fatal five rounds into Parker's abdomen.

Watch the video for yourself and listen to the DA's explanation.

Police reported Parker was not wielding a gun at the time he and the second robber stormed into the pharmacy.

Ersland's attorney, Irven Box, says Ersland was protecting himself and two women inside the pharmacy.

"Finally someone stands their ground and takes action," Box said. "The state said he was still alive. He's not dead. He eliminated that threat. He eliminated someone who came in and said, 'Your money or your life.'"

Oklahoma City police did not find any evidence that the armed subject fired any rounds at Ersland or the store.

Ersland will have a bail hearing Thursday morning.

The second suspect is still on the run. The district attorney says if and when he's caught he'll be charged with attempted robbery in the first degree.

[Conan71]

Here's my observations:

The media is trying to make this kid a victim.  He got shot in the commission of a crime.  He was involved in threatening other's lives and wound up on the wrong end of a gun and adrenaline.  Sorry to his family for the loss, but this is something that can happen when you start running with the wrong crowd.

This all happened pretty quick.  I agree, there was no need to go back in and unload on the kid, when he came back inside he should have grabbed the phone and called 911 right away and kept an eye out for the other robber to return.

The pharmacist obviously knows his way around a gun- head shot at 20 feet and unloaded five shots in a matter of 2-3 seconds.  Chances are, the head-shot would have proven fatal, so I really don't see how he made this kid "more dead" by shooting him in the abdomen.  That's the only part where I have trouble with the charges brought by the DA.  Did the pharmacist kill the kid with malice aforethought, or was he amped up on adrenaline and had watched too many bogeyman movies where the monster keeps getting back up? 

I suspect a jury will find him guilty of manslaughter. 

It IS up to the DA to bring the charges as he sees the action fits into the law.  The DA is charged with upholding the law and community standards.  It's up to 12 people to ultimately decide whether or not this man reacted appropriately or not.  They had a defense attorney on KRMG this morning who eplained that when acting in self-defense you can react commensurately with the threat.  If someone threatens to punch you, it does not warrant shooting them.  If they brandish a knife, baseball bat, or gun you can reasonibly expect you are in danger of death and can use deadly force.  At the point the pharmacist dumped five more rounds in the kid, he was no longer being threatened.  As well, I didn't see a gun in the 16 y/o's hands at any point in the video so it can be argued the pharmacist reacted with deadly force in the remaining five shots when there was no threat of bodily harm or death to him.  It could even be argued that he shot an un-armed man and there was no threat of bodily harm from the 16 y/o kid, but rather his accomplice who escaped.

I'm a gun owner and I've got the right to protect myself on my property.  However, I also have to realize that I have to be responsible with my gun and understand what constitutes a real threat to myself or others on my property. 

I was confronted by a crankster punk on my lawn last night who came within inches of hitting my truck from behind as I pulled into my driveway.  He jumped out of his vehicle and started to approach me.  Would it have been appropriate for me to shoot someone who was being a beligerant a**hole?  Absolutely not.  I told him he better think twice before taking another step toward me.  He backed off, called me a b!tch, got in his car, and took off.  If he'd gotten out of his vehicle with a gun or other weapon, different story.

[cannon_fodder]

The kid was alive, unarmed and unconscious on the floor from being shot in the head, the pharmacist chased the second robber out the door, gave up, came back got a second gun and shot the kid five times while he lay on the floor killing him. And it's on video.

What does that sound like to you?

Actually, the video doesn't show that.  When the guy is shot he goes off camera.  You can not see the person on the wrong end of the last shots.

Was he unconscious?  Don't know.  Did he appear to be going for a weapon?  Don't know.  We can not see him on the video.  In the totality of the circumstances, were the actions unreasonable?

From the video we know 2 men charged in, a deadly threat was presented to the owner, the owner shot one of the men and chased the other out the door. The owner returned to the shop.  Got a different gun.  Approached the downed man and shot him repeatedly.  Then called 911.  All within 75 seconds.

The autopsy tells us that the man was on his stomach when shot.  It tells us he was alive when he was shot.

To me it indicates inappropriate behavior.  It was probably excessive us of force.  Probably warrants a murder charge of some persuasion.   But 60 seconds after being threatened with deadly force I can't see how a charge of first degree murder makes sense.  First degree murder is the highest offense possible, the same as if he kidnapped the kid and executed him.  I highly doubt and it doesn't appear that the guy reasoned out his actions and then decided to execute the man.  He was certainly still in the heat of the crisis created by the now deceased robber.

The second suspect is still on the run. The district attorney says if and when he's caught he'll be charged with attempted robbery in the first degree.

The second suspect should be charged with first degree murder according to the felony murder rule.    Anything less is crap.
- - -

No sympathy for the dead man.  Sorry for his family, but the robbers death probably just saved the State money in the long run. 

[edit]man was on his stomach by autopsy, shot in the back.  typo [/edit]

[guido911]

well said CF.

[Cats Cats Cats]

well said CF.

So, this whole thread has changed course after the charge on the store owner.  Guido, you are saying that he should be charged with a (lesser) murder charge? 

[cannon_fodder]

Bond was set at $100,000.

Normal bond for a 1st Degree murder charge is around $500,000. 

For whatever that's worth . . .

[PepePeru]

Unloading the clip into the other kid was his undoing as it should be.

Realistically, this will be another incident,in which Ersland will avoid jail-time and work out a plea bargain with the DA and get away relatively unscathed.

[Conan71]

Unloading the clip into the other kid was his undoing as it should be.

Realistically, this will be another incident,in which Ersland will avoid jail-time and work out a plea bargain with the DA and get away relatively unscathed.

Perhaps he will avoid jail time.  The only conclusion we've heard from the ME was that the robber was apparently still alive after the head-shot, that doesn't mean necessarily that the head wound would not have been fatal.  IOW, the robber could have been just as dead in five minutes.  If the DA feels he can get a conviction for first degree murder, I doubt he's going to work a plea deal.  A plea will only happen if he becomes convinced there's no way a jury would convict on FDM.  Even then it's possible it goes to trial for FDM and the jury could be given alternate punishment instructions for 2nd degree murder or first degree manslaughter.  It's pretty common in Oklahoma.

I think there's enough room for a jury to look at this as manslaughter, yet, just like the rest of us on here, I'm not privy to all the evidence in the case.  The DA has to decide what's best for the citizen's of Oklahoma, if that's persuing FDM, great, if that's bargaining down to manslaughter, that's just fine as well.

[tim huntzinger]

Emptying a full clip into a wounded person is poor judgment at least, and Murder One at worse.  IMHO it sounds like the PharmD is getting 'Gummed.'

[buckeye]

I'm torn.  Unloading like the pharmacist did was brutal.  At the same time, I want criminals to realize fully that the risks of committing armed robbery include not just being shot, but being killed very dead indeed.

[swake]

I'm torn.  Unloading like the pharmacist did was brutal.  At the same time, I want criminals to realize fully that the risks of committing armed robbery include not just being shot, but being killed very dead indeed.

But he ran the risk and got shot in the head for it. There's no question that the headshot was within the rights of the pharmacist. The kid put himself in a situation where he was possibly going to get shot and/or go to prison and paid the price by taking a shot to the head. If the situation had ended there like it should have and if he had recovered from the headshot he was either going to end up in prison or in a long term hospital depending on how serious the headshot was. The kid made a really bad choice and was going to pay for it.

But he didn't deserve to get executed. Which is exactly what happened. Armed Robbery when no victim is harmed is not and should not be a death penalty crime. If you get shot and killed while committing the crime by someone protecting themselves, too bad, sucks to be you. But executed by one of your victims after the fact? That's wrong. Being the victim of a crime does not give you the right to get the revenge of your choice.

[Renaissance]

If you get shot and killed while committing the crime by someone protecting themselves, too bad, sucks to be you. But executed by one of your victims after the fact? That's wrong. Being the victim of a crime does not give you the right to get the revenge of your choice.

Morally wrong?  Probably.

Legally wrong?  I'm not really seeing it. 

The law allows the use of lethal force in self-defense when, like here, you're threatened in a like manner and the duty to retreat has been exhausted.  That extends to reasonable fear of being threatened.  So if a reasonable person in the same situation (just been threatened, already wielding a firearm in self-defense) would have had any fear of continued threat, I'm thinking he gets off.

CF:  You think they'll get 1st Degree Murder at a crime scene where the guy was still in the middle of defending himself?  Admittedly, I'm not versed in Oklahoma criminal law, but given what I remember from Crim I, I'm just not seeing the necessary premeditation.  No way a jury convicts.

[PepePeru]

Why did he return to the store, where there was still a 'threat' present?
Why did he turn his back to the suspect to get the other gun?

Does that seem like the actions of a man feeling threatened?
Turning your back? 


He obviously did not exhaust his ability to retreat from this situation, after the initial, and quite justified first shot.

[Renaissance]

Why did he return to the store, where there was still a 'threat' present?
Why did he turn his back to the suspect to get the other gun?

Does that seem like the actions of a man feeling threatened?
Turning your back? 


He obviously did not exhaust his ability to retreat from this situation, after the initial, and quite justified first shot.

Remember, he has no legal duty to retreat from his home or place of business.  It's different from being threatened on a city street.

This guy obviously wanted the bad guys dead, not injured.  He certainly committed homicide.  The question is, in the eyes of the law, was this justifiable homicide?

This is a really interesting legal question, actually.  At what point does a property owner's right to lethal force cease?  When he's shot the bad guy, or when he's shot the bad guy dead?

I think a jury is going to find that once lethal force is justified in the eyes of the law, there isn't a line between 1 shot or 6.